McGowan v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

699 A.2d 1344, 1997 Pa. Commw. LEXIS 356
CourtCommonwealth Court of Pennsylvania
DecidedAugust 12, 1997
StatusPublished
Cited by2 cases

This text of 699 A.2d 1344 (McGowan v. Commonwealth, Department of Transportation, Bureau of Driver Licensing) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGowan v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 699 A.2d 1344, 1997 Pa. Commw. LEXIS 356 (Pa. Ct. App. 1997).

Opinion

NARICK, Senior Judge.

The issue before us in tMs appeal is whether the Court of Common Pleas of Bucks County (trial court) erred by finding that H. Steven McGowan (McGowan) was not a habitual offender under Section 1542 of the VeMcle Code1 because two of his three driving under the influence of alcohol offenses (DUI’s) arose from one single act of intoxication rather than separate acts.

The Department of Transportation, Bureau of Driver Licensing (DOT) appeals an order of the trial court that sustained McGowan’s appeal of a five-year revocation of his operating privileges. We reverse.

The facts elicited at the de novo hearing on McGowan’s statutory appeal are undisputed. On August 18, 1991, McGowan was charged with DUI.2 On December 5, 1991, McGowan accepted Accelerated Rehabilitative Disposition (ARD) on that charge and his operating privileges were suspended for a period of 30 days.3 At approximately 11:30 p.m. on October 22, 1995, McGowan was arrested by an officer of the Bensalem Police Department and again he was charged with DUI. At the police station, McGowan submitted to a breathalyzer test that resulted in a blood alcohol content (BAC) reading of 0.17%. After the breathalyzer results were obtained, the police drove McGowan to Ms home. While at home, McGowan became upset at the BAC reading because he did not understand how Ms BAC could register 0.17% when he stopped drinking at 8:00 p.m. that evemng. McGowan then retrieved Ms car, [1346]*1346which was parked up the street, and drove to the Bensalem police station to ask for another breathalyzer test.

At the police station, the same officer who initially arrested McGowan refused to give him another test and told him to go home. McGowan then left the station at approximately 1:00 a.m. on October 23, 1995 and started to drive home. After McGowan drove approximately one-quarter of a mile from the police station, he was again arrested for DUI. He submitted to another breathalyzer test that yielded a BAC result of 0.14%.

On March 6,1996, McGowan pled guilty to both DUI charges and he was sentenced to two concurrent terms of thirty days to one year imprisonment. The Clerk of Courts of Bucks County then forwarded certification of McGowan’s two DUI convictions to DOT. By official notices, DOT informed McGowan that his March 6,1996 convictions placed him in the “habitual offender” category under Section 1542 of the Vehicle Code. As a result, his operating privileges were revoked for a period of five years. McGowan appealed to the trial court.

At the hearing, McGowan claimed that the two DUI offenses of October 22 and 23,1995 arose out of the same act because they occurred one and a half hours apart on the same night and involved the same police department. Thus, McGowan argued that his last two DUI convictions did not make him a habitual offender because Section 1542 requires three convictions arising from separate acts.4

The trial court agreed with McGowan and determined that his behavior during the one and one-half hour period on October 22 and 23, 1995 was all related to the same drinking episode. The trial court further determined that each separate driving incident was related to the original stop and the first breathalyzer test. Relying on the Pennsylvania Supreme Court’s decision in Frontini v. Department of Transportation, 527 Pa. 448, 593 A.2d 410 (1991), the trial court concluded that the two DUI convictions on March 6, 1996 did not arise from “separate acts” as required by the habitual offender statute. Thus, McGowan’s statutory appeal was sustained and the five-year license revocation was rescinded. DOT now appeals to this Court.5

Under the habitual offender provision of Section 1542, a habitual offender is statutorily defined as any person who is convicted within a five-year period of three serious traffic offenses that arose from separate acts. 75 Pa.C.S. §§ 1542(a) and (b). There is no question in this case that McGowan incurred a DUI conviction in 1991. The question is whether McGowan’s subsequent convictions for DUI on March 6,1996 arose from one act or separate acts for the purpose of determining the number of convictions under Section 1542.

DOT argues that the trial court committed an error of law by ruling that McGowan’s DUI offenses on October 22 and 23,1995 did not arise from “separate acts” within the meaning of 75 Pa.C.S. § 1542(b). DOT con[1347]*1347tends that the two DUI offenses arose from separate acts committed by McGowan at separate times during the night and were not part of a single, continuous criminal episode. In support, DOT asserts that Department of Transportation, Bureau of Traffic Safety v. Frye, 88 Pa.Cmwlth. 380, 489 A.2d 984 (1985), affirmed per curiam, 514 Pa. 219, 523 A.2d 332 (1987) controls the instant case rather than Frontini. We agree.

In Frye, the driver committed four serious traffic violations in a single night.6 Based on his convictions for these violations, DOT classified Frye as a habitual offender under Section 1542. On appeal, Frye contended that the habitual offender statute only took effect when a driver committed offenses enumerated in Section 1542(b) on three separate, unconnected points in time. Thus, Frye claimed he was not a habitual offender because his violations all occurred in one evening within a narrow time frame. We rejected this argument and held that the habitual offender statute “takes effect whenever there are three convictions on Section 1542(b) offenses, regardless of whether these offenses are committed within a narrow time frame or on separate occasions.” Frye, 489 A.2d at 985.7

Rather than rely on Frye, however, the trial court in the instant case relied on Fron-tini In Frontini the vehicle driven by licensee struck another vehicle killing three of the occupants in the second vehicle. The licensee was subsequently charged with and pled guilty to DUI, reckless driving and three counts of homicide by vehicle. Based on licensee’s convictions for DUI and the first two homicide by vehicle offenses, DOT .classified licensee as a habitual offender under Section 1542. The Pennsylvania Supreme Court rejected DOT’s classification of licensee as a habitual offender and concluded that the three convictions for homicide by vehicle resulted from a single act. Thus, the Supreme Court held that licensee was not a habitual offender.

In reaching its decision in Frontini the Supreme Court stated that:

The apparent thrust of the habitual offender statute is to punish persons who make a “habit” of violating the more serious provisions of the vehicle code, thus causing themselves to be a menace to the other licensed drivers in Pennsylvania. Thus, the habitual offender statute is recidivist in nature, concerning itself with the number of prior acts committed by the offender, as opposed to the multiple consequences of any one act.

527 Pa. at 451, 593 A.2d at 412.

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699 A.2d 1344, 1997 Pa. Commw. LEXIS 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowan-v-commonwealth-department-of-transportation-bureau-of-driver-pacommwct-1997.